If Senators want to talk it to death, they should have to open their mouths [Commentary]

JIM KENNEDY, jkennedy@theaegis.com

Lately I've been fascinated, like many other folks who pay attention to national politics, by the wranglings in the U.S. Senate relating to blocking legislation via something called a filibuster.

My trusty Concise Columbia Encyclopedia, which started out as a single volume but whose red cover is tattered and now consists of two packets of pages, notes that the filibuster in modern times makes reference to delay tactics used in a legislative body to keep a particular bit of legislation from coming up for a vote.

Curiously, my handy-dandy two volume set that was once a single volume, gives the following bit of insight into the origins of the term as it applies to modern politics: "The term was applied in the 17th Century to buccaneers who plundered Spanish colonies in the New World and in the 19th Century to adventurers who led private forays into friendly country, e.g., from the U.S. into Cuba and Mexico."

More strictly speaking, the term has come in modern times to refer to a U.S. Senator taking podium in the chamber and talking until everyone was so sick of nothing getting done that more pressing business is pursued and the offending topic is put off for another day.

The theory behind the senatorial tradition of filibuster by talking relates to the Senate's rules for allowing debate under which individual senators were not obliged to give up the floor until they were done making their points. It was concluded that since it takes a two-thirds majority to override a presidential veto and no senator should have more veto power than a president, the rule would be set so that a senator could be stifled if two thirds of the senators voted to end debate. Not surprisingly, this effectively gave each senator de facto veto power, provided that senators were willing to do things like read names out of a phone book and not sleep until it finally became time to move on to other business.

Many people will be surprised to learn there is no mention of senators having this veto power in the Constitution's Article 1, Section 3, which establishes the Senate. It is a power the Senators have essentially given themselves.

As a tool of politics, it has a checkered past, having been famously used by Southern senators to block civil rights legislation. The U.S. Senate's web site notes the "record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957."

(The anti-civil rights sentiment in Congress has largely evaporated, at least in its overt form, though Thurmond was re-elected and continued to serve in the Senate until after his 100th birthday. He retired in 2002 and died in 2003.)

The delay tactic of the filibuster by speech has long since gone away. These days it amounts to senators, of both major parties, who know their colleagues don't have the necessary super majority to cut off debate, so they simply threaten to filibuster and the result is a delay. Every senator, therefore, has veto authority, without having to work particularly hard to enforce it. And it is not an authority enumerated in the Constitution, but one that has been extrapolated from other aspects of the original document.

On the whole, I don't think the filibuster technique is a terrible thing. The Senate was, after all, designed to keep the other side of the legislature from acting too quickly. I do, however, believe to be granted full veto power, you either need to get yourself elected to the office of president or you should be obliged to take an extraordinary action like talking for 24 hours and 18 minutes to secure that power.

I am a firm believer that senators who want to filibuster legislation they don't like should be allowed to do so, and they should have to talk that legislation to death or allow a vote if they don't have the willingness to stand up and ramble on.